Olusegun Adebayo Oni Vs Peoples Democratic Party (2013)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA JSC

This is an appeal against the decision of the Court of Appeal, Ekiti, holden at Ado-Ekiti in which a full panel of the Court declined the invitation to set aside its judgment. I will set out as much of the facts as I consider material to this appeal.

The Governorship election was held in all the States of Nigeria including Ekiti State on 14th April, 2007. The Peoples Democratic Party flagbearer in Ekiti State, Olusegun Adebayo Oni, was returned as the winner of the election by the 3rd and 4th Respondents. First Respondent, Dr. John Olukayode Fayemi challenged the result of the election at the National Assembly Governorship and Legislative House Election Tribunal constituted for Ekiti State and sitting at Ado-Ekiti on various grounds.

In the judgment delivered on 28/8/2008, the Tribunal dismissed the petition; whereupon the 1st Respondent lodged an appeal before the Court of Appeal, Ilorin Division. On 12/2/2009, the lower Court delivered its judgment in which it allowed the appeal in part and ordered a supplementary election in 63 words, leaving the result of six (6) wards intact to be added to the result of the supplementary election in the 63 wards affected.

INEC, the 3rd Respondent, duly complied with the order of the lower Court on 24th April 2009 and 5th May, 2009. Both the 1st Appellant and the 1st Respondent contested the election with the candidates of other eleven political parties.

When the result of the supplementary election was added to the result of the six uncontested wards, the 1st Appellant was declared winner with 111,140 votes against the 1st Respondents 107,017 votes. Again the 1st Respondent challenged the result of the election. In its majority decision rendered on 5/5/2010, the Tribunal annulled the result of the supplementary election in some Wards and dismissed the Petition. First Respondent appealed to the Court of Appeal, Ilorin Division, against the majority decision of the Tribunal. By its judgment, delivered on 15/10/2010, the Court of Appeal allowed the appeal, set aside the majority decision of the Tribunal and affirmed the minority decision which pronounced the 1st Respondent the duly elected Governor of Ekiti State.

On 13th January, 2011 the Appellant wrote a petition headed ‘COMPLAINT AGAINST HON. JUSTICE AYO SALAMI & ORS FOR MY PREMEDITATED AND INJUDICIOUS REMOVAL FROM OFFICE AS GOVERNOR OF EKITI STATE’ to the Chairman of the National Judicial Council, Supreme Court Complex, Abuja. On 14th March 2011, while the petition was pending before the NJC, the appellants brought a motion on notice pursuant to the inherent jurisdiction of the Court for the following reliefs:

‘1. An order setting aside the judgment of the Court of Appeal, Ilorin delivered on the 15th October, 2010 nullifying the election of the 1st appellant as the Governor of Ekiti State.

2. An order directing a fresh panel of the Court of Appeal to hear and determine the appeal de novo.
3. An order directing the Hon. Speaker of the Ekiti State House of Assembly to take over the governance of Ekiti State pending the hearing and determining of the appeal…’

The reliefs in the application were predicated on the following grounds:

1. The judgment of the Election Appeal Tribunal was delivered without jurisdiction and in breach of the Applicants right to fair hearing.
2. The judgment of the Election Appeal Tribunal is a nullity having been predetermined and delivered through a panel which has close affinity with the 1st and 2nd Respondents.
3. The judgment is compromised and vitiated by reason of the said close affinity between the Justices who sat on the panel, especially the President of the Court of Appeal who presided over the Panel, and the 1st and 2nd Respondents, in particular Senator Bola Ahmed Tinubu, leader and the alter ego of the 2nd Respondent.
4. That the said close affinity created bias in favour of the 1st and 2nd Respondents and against the Applicant.
5. That the Honourable Justices of the Election Appeal Panel Tribunal were disqualified to sit on the panel or entertain the appeal and deliver judgment thereon by reason of issues raised in a Sworn Affidavit regarding the relationship between Senator Bola Ahmed Tinubu, a leader of the 2nd Respondent and the President of the Court of Appeal, Honourable Justice Isa Ayo Salami , who presided and delivered the lead judgment of the Tribunal.
6. That the Applicants were denied their right to a fair hearing by reason of the aforementioned averments.
7. That the judgment is a nullity for the reasons stated above…’

The motion was supported by a 48-paragraph affidavit to which diverse documents, including the judgment sought to be set aside, were exhibited.

The 1st Respondent filed a 36-paragraph counter-affidavit in which he denied all the material facts in the supporting affidavit. The 1st and 2nd Respondents filed a notice of preliminary objection to the motion on 23/3/2011 while the 3rd-6th Respondents filed their own notice of preliminary objection also on 23/3/2011. Among others, the ground for the preliminary objection is that the Court below, having delivered its judgment on 15th October, 2010 has become functus officio.

SC. 221/2012